NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0049n.06

No. 16-1741

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JAMAR HARRIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: MERRITT, MOORE, an d STRANCH, Circuit Judges.

PER CURIAM. Jamar Harris, his brother Major Harris, and Lamhal Bell robbed a RadioShack, taking 13 iPhones valued at r oughly $7,800. During the robbery, Bell pointed a firearm at a sales associate. A federal grand ju ry subsequently charged Jamar Harris as an aider and abettor with interfering with commerce by robbery in violation of 18 U.S.C. §§ 2 and 1951(a) and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c). Jamar Harris pleaded gui lty to the robbe ry count but proceeded to trial on the firearm count. After a three-day trial, during which Major Harris and Bell testified, the jury convicted Jamar Harris on the firearm count. The district court sentenced him to 33 months of imprisonment for the robbery conviction followed by 60 months of imprisonment for the firearm conviction.No. 16-1741 United States v. Harris

- 2 - Jamar Harris filed a timely appeal challeng ing his firearm convicti on. Harris argues that the district court erred in (1) denying his motion for a judgment of acquittal because the government failed to establish his advance knowledge that a firearm would be used or carried during and in relation to the robbery and (2) giving an instruction that allowed the jury to infer his advance knowledge.

We review de novo the distri ct court’s denial of Harri s’s motion for a judgment of acquittal. See United States v. Vichitvongsa , 819 F.3d 260, 270 (6th Cir. 2016). In re viewing the sufficiency of the evidence, “the relevant questi on is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact co uld have found the essential

elements of the crime be yond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). “Circumstantial evidence alone is suffici ent to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.” United States v. Lowe , 795 F.3d 519, 522-23 (6th Cir. 2015) (quoting United States v. Algee , 599 F.3d 506, 512 (6th Cir. 2010)). Harris proceeded to trial on the charge of ai ding and abetting a co-defendant in using and carrying a firearm during and in relation to a crim e of violence in violati on of 18 U.S.C. §§ 2 and 924(c). In Rosemond v. United States , 134 S. Ct. 1240 (2014), the Supreme Court held that, when a defendant is charged with aiding and ab etting a § 924(c) offens e, the government must prove that “the defendant activel y participated in the underlying . . . violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Id . at 1243. Contrary to Harris’s argum ents, the government presented su fficient evidence to establish that he had advance knowledge that his accompli ces would use or carry a gun during the robbery

and that he intended to further an armed robbery.No. 16-1741 United States v. Harris

- 3 - At trial, Major Harris testified that he called Jamar Harris and asked him if he wanted to make some money. Major Harris told Jamar Harri s that they were going to “hit a lick on some phones.” Although Major Harris testif ied that “hit a lick” is a “[v]ery broad term ,” he stated that he meant “To go and take something I guess, to go take the phones . . . [f]rom armed robbery, you know, took––that’s the way we took them.” The RadioShack’s security videos along w ith the witness testim ony can reasonably be viewed as depicting the execution of a planned armed robbery, with each man playing a defined

role. After the three men entered the RadioSh ack and the sales associate greeted them, Jamar Harris asked her about tablet protectors. As th e sales associate assisted Jamar Harris, Bell grabbed her from behind, placing a hand over her mouth and putting a gun to her head. Jamar Harris, instead of acting surprise d or hesitant when Bell displaye d the firearm, sprang into action and led the way to the back stor age area where the iPhones were stored. Jamar Harris and the sales associate then placed the iPhones into a bag while Bell st ood by with the gun in his hand and Major Harris detained another employee. In addition to Major Harris’s testimony about “hitting a lick,” Jamar Harris’s lack of surp rise when Bell pulled out the firearm and his continued participation in the r obbery provided circumstantial evid ence for the jury to find that he had advance knowledge that a gun would be used during the robbery. See Rosemond , 134 S. Ct. at 1250 n.9 (“[I]f a defendant c ontinues to participate in a crim e after a gun was displayed or used by a confederate, the jury can permissibly in fer from his failure to object or withdraw that he had such knowledge.”). Even if Harris did not have knowledge of the firearm when he walked into the RadioShack, there was sufficient evidence for th e jury to find the requisite advance knowledge under an alternate theory—that is, he had a realis tic opportunity to withdr aw when Bell revealedNo. 16-1741 United States v. Harris

- 4 - the firearm. In Rosemond , the Supreme Court held that th e requisite advance knowledge is “knowledge at a time the accomplice can do something with it—most notably, opt to walk away.” Id . at 1249-50. Here, Jamar Harris had not comp leted his role in the robbery when the firearm appeared. After Bell put the firearm to the sales associate’s head, Jamar Harris led the way to the back storage area, passing by an exit door—the same exit door the three men later used to flee the scene. Instead of walking out that door, Harris chose to proceed to the storeroom, where he grabbed the iPhones and placed them in a bag. Harris argues that there was no evidence to support a finding that he saw the gun at any time during the robbery. Refuting this argument, the security videos show that Ja mar Harris was standing ri ght next to Bell when Bell pulled the gun from his pocket and put it to th e sales associate’s head and that Bell carried the firearm in his hand throughout the remainder of the robbery. Major Harris also confirmed that Jamar Harris was “[w]ithin a few feet” of Bell. Shannon Riley, one of the RadioShack employees, confirmed that the gun was visible, a nd that Jamar Harris was “a half a step behind”

Bell. As for Harris’s argument that walking away “m ight increase the risk of gun violence” and that finishing the crime “might be the be st or only way to av oid that danger,” Rosemond , 134 S. Ct. at 1251, the government presented testimony that Bell had no intent to shoot anyone and that Bell and Major Harris agreed that the gun would not be fired during the r obbery. The jury could also infer, based on the close relationship betw een Bell and Major Harris, that Bell would never shoot Major’s younger brother. The jury could have found the requisite advance knowledge under this alternate theory. We review de novo Harris’s challenge to the jury instruction on advance knowledge. See

United States v. Burchard , 580 F.3d 341, 345 (6th Cir. 2009). “[W]here the instructions, ‘takenNo. 16-1741 United States v. Harris

- 5 - as a whole, fairly and adequately submit the issues and applicable law to th e jury,’ our inquiry ends, as a defendant cannot be im properly prejudiced by a jury inst ruction that is warranted by the evidence and that accurately states the law.” United States v. Reichert , 747 F.3d 445, 451 (6th Cir. 2014) (brackets omitted) (quoting United States v. Zidell , 323 F.3d 412, 427 (6th Cir. 2003)). Following Sixth Circuit Pattern Criminal Jury Instruction 12.04, the district court instructed the jury as to th e advance knowledge required under Rosemond as follows:

Jamar Harris intended to aid and abet th e crime of Using or Carrying a Firearm During and in Relation to a Crime of Violence if he had advance knowledge that Lahmal [sic] Bell and/or Major Harris would use or carry a firearm during the commission of a crime of violence. Advance knowledge means knowledge at a time a defendant can attempt to alter the pl an or withdraw from the enterprise. Knowledge of the firearm ma y, but does not have to, ex ist before the underlying crime is begun. It is sufficient if Jama r Harris gained the knowledge in the midst of the other crime, as long as—excuse me—in the midst of the underlying crime so long as after acquiring the knowledge, Jamar Harris had a realistic opportunity to withdraw but instead chos e to continue to participate in the crime. You may, but need not, infer that Jamar Harris had sufficient foreknowledge if you find that Jamar Harris chose to continue his particip ation in the crime after he knew that Lahmal [sic] Bell and/or Major Harris was using or carrying a firearm. According to the “Use Note” for the pattern inst ruction, the last two sent ences “should be used only if the evidence suggests that the defendant gained knowledge of the firearm in the midst of the underlying crime.” Harris argues that this la nguage should not have been used because the government’s theory during the trial was that he had knowledge of the firearm when he walked into the RadioShack. However, the government exp licitly made this altern ative argument in its closing statement. Moreover, because there wa s evidence to support the theory that Harris gained knowledge of the firearm in the midst of the robbery, the district court did not err in including that language.No. 16-1741 United States v. Harris

- 6 - Harris also contends that this portion of th e instruction could have been interpreted as requiring the jury to find that he possessed the re quisite advance knowledge unless he chose not to continue his participation in the robbery and it was unrealistic for him to withdraw, amounting to an unconstitutional “burden-shifting presumption or conclusive presumption.” The instruction did not require the jury to make such a finding. Th e district court instructed the jurors that they “may, but need not, infer” Harris’s advance knowledge. Such an inference is allowed. See

Rosemond , 134 S. Ct. at 1250 n.9 (“[T]he jury can permi ssibly infer from his failure to object or withdraw that he had such knowledge.”). Furthermor e, the district court instructed the jury that the burden of proof remained with th e government “from start to finish.” Harris also argues that the district court fail ed to provide the jury with a definition of “crime of violence,” thereby reliev ing the government of its burden to prove each element of the firearm count beyond a reasonable d oubt. Harris never asked for an instruction defining “crime of violence.” In fact, Harris pr oposed instructing the jury that “Interfering with Commerce by Robbery, Aiding and Abetting, is a crime of violen ce.” Regardless, whether an offense is a “crime of violence” is a legal ques tion for the court, not the jury. United States v. Credit , 95 F.3d 362, 364 (5th Cir. 1996) (“Our sister circuits have held that, in the context of jury charges, the definition of ‘crime of violence’ is a matter of statutory interpretation that is a ‘purely legal judgment’ for the court. We join these circuits, which have reasoned soundly that this is, indeed, a question of law that should not be submitted to the jury.” (internal citations omitted)); see United States v. Evans , 699 F.3d 858, 862 (6th Cir. 2012) (recognizing that whether an offense qualifies as a “crime of violence” is a legal determination). For these reasons, we AFFIRM Jamar Harris’s firearm conviction.